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Deterrence by Scapegoating

I have been paying some attention to the case of R. Allen Stanford whose investment company, Stanford Financial Group, reportedly cheated their investment clients out of lots of money. This recent article reports that two more executives in the company received 20-year prison sentences — this brings the total prison time of Stanford employees to a combined 158 years!

I must admit that my research of the Enron cases has made me skeptical of our justice system. Having seen how prosecutors routinely abuse the system to their advantage has made me doubt the results of any trial — and plea deals are known farces from which no conclusions can be reliably drawn. Therefore, even in a case such as that of Stanford, I simply have no confidence that the prosecutions were fairly handled and that justice was achieved.

To make matters even worse, one of the federal prosecutor in the Stanford case, Assistant U.S. Attorney, Jeffrey Goldberg, repeated the same stupid lines we hear all the time from the government when they want to justify huge prison sentences or abusive prosecution tactics — the prosecutor said the draconian prison sentences will “send a message.” We heard the same nonsense in the Enron cases from the federal prosecutions who called Enron a “signature case” for the government and who tried to justify their “questionable tactics” by saying that they wanted to “make an example” out of Enron defendants (quotes are from the prosecutors). This is the concept of “deterrence by scapegoating” which is a shockingly common justification in the USA for abuse of defendants.

Making an “example” out of a defendant is not justice. Prosecutions and punishments are about individual human beings, not “examples” — each accused person deserves to have his case handled based on its own circumstances, not on some perverse desire to deter others by making a random defendant a public scapegoat. When we make spectacles out of the prosecutions of human beings, or when we applaud prosecutors who do so, we sink to the level of a mob.

If simple concerns of justice do not move you, then consider the practical consequences. In the case of white collar crime, deterrence by scapegoating simply is ineffective and unnecessary. It is ineffective because most white collar crime among senior executives is not based on carefully crafted, pre-meditated misconduct — scapegoating does not deter unplanned behavior — executives simply do not see their own behavior reflected in the behaviors of others. Furthermore, scapegoating is unnecessary because studies have shown that:

1. White collar crime is the easiest crime to deter — among white collar defendants, simply being accused of a crime deters illegal behavior — a prison sentence adds no additional deterrence effect to the defendant himself or to others.

2. Recidivism among most white collar criminals is zero regardless of the punishment — long prison sentences have no additional impact, other than adding to the financial burden of the taxpayers who pay for the sick satisfaction of having a person sit in prison doing nothing.

The only “example” that we should be interested in is the example of a fair and rational legal system that is focused on justice for each individual, based on the circumstances of his case, and his case alone. When we allow prosecutors and the courts to violate that basic principle of justice, the example we see is of a legal system out of control — we see the example of injustice.

Cara Ellison

2 Comments

  1. Making an example out of a defendant really is NOT justice. It boils down to this and the author James Baldwin laid it out years ago. “For, if they take you in the morning, they will be coming for us that night.”

  2. This is correct. The DOJ is out of control and targets whoever they choose to make themselves look important. For example: The DOJ is going after dentists and inventing criminal cases out of procedural definitions that they are not qualified to make any decision about. Who is next on their target list? All of us?

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